On behalf of the Institute for Jewish & Community Research (IJCR), we submit the following
comments on your draft report, Ensuring Academic Freedom In Politically
Controversial Academic Personnel Decisions, issued February 18, 2011. IJCR is an independent,
non-partisan think tank that provides innovative research and pragmatic policy
analysis on a broad range of issues including racial and religious identity, philanthropy,
and anti-Semitism. We have a particular interest in American higher education, including
issues involving anti-Semitism, anti-Israelism, academic freedom and the freedom
of speech. We applaud the AAUP’s insistence that academic appointments and related
personnel decisions should be based on the performance of professional responsibilities.
However, we believe that the current draft report undermines this fundamental
principle in at least three respects:

by unreasonably reducing the ability of students to provide legitimate input
about professorial misconduct,
• by inappropriately limiting even the possibility of investigation of serious charges
advanced by scholars from other institutions, and

by failing to sufficiently address political considerations that enter into internal faculty
decision-making.

We urge the AAUP to amend its draft report to address these three serious problems.
As an initial matter, we emphasize our strong agreement with the AAUP’s statement
that “political restrictions on academic expression must not be countenanced – even
when many faculty members support or acquiesce in them. “ IJCR supports the
AAUP’s strong stand against the intrusion of extraneous political considerations into
controversial (or non-controversial) academic personnel decisions. This is a bedrock
principle of academic freedom. IJCR also commends AAUP for acknowledging that
invidious political considerations may be raised internally or externally and that they
may disfavor academics across the political spectrum. In any of these cases, the use of
such considerations is inappropriate, and the AAUP is right to say so.

IJCR’s first concern is that the report unreasonably reduces the already inadequate ability
of students to provide legitimate input about professorial misconduct. In particular,
IJCR is concerned that the report insists that colleges entirely ignore complaints regarding
alleged classroom speech filed by student political groups unless “they are based
on evidence from students who were actually enrolled in the course or courses in
which the alleged inappropriate conduct occurred and who were present to observe
that conduct.” This is especially disturbing in light of numerous reports of students
who are forced to drop courses due to professorial bias or misconduct. If the draft recommendations
are adopted, universities will be required to ignore all first-hand
accounts of professorial misconduct by students who are present to witness the misconduct
if those students are not enrolled in the course. Since students who remain
enrolled in such courses are vulnerable to professorial retaliation, this measure would
effectively squelch what little opportunity exists for protection of students’ rights
against misconduct and bias. This proposal would unduly and inappropriately insulate
professorial misconduct from review. It should be modified to recommend instead that
institutions consider only complaints filed by persons who have first-hand information
about the conduct which they allege.

IJCR’s second concern is that the report unreasonably limits even the possibility of
investigation of serious charges advanced by scholars from other institutions. For
example, the AAUP report warns that “[u]nsolicited accusations, even from academics
at other institutions, should be viewed with heightened skepticism in politically controversial
cases.” IJCR agrees that skepticism is always appropriate in such cases but
believes that institutions do themselves no favors when they ignore or belittle the
warnings that are issued by other academics. IJCR is particularly troubled by the draft
report’s statement that “procedures should ensure that such accusations never in themselves
provide an acceptable basis for initiating a disciplinary proceeding, and they
should generally not be considered in evidence in any personnel proceeding”
(emphases added). It is important to emphasize that the report does not merely urge
that warnings from scholars at other institutions should be insufficient as a basis for
taking adverse action in a politically controversial case -- which would be a reasonable
and appropriate recommendation in line with the AAUP’s stated principles and goals.
Rather, this provision insists that universities should never even consider such warnings
and should never even initiate an investigation to determine whether such charges are
meritorious. This provision would inappropriately foreclose even the possibility of
investigating serious charges as to which an institution is on proper notice. It should
be modified to recommend instead that accusations, even from academics at other institutions,
never be the basis for taking adverse employment action against any professor,
although they may provide the basis for appropriate investigation.

IJCR’s third concern is that the proposed statement does not adequately address the
extent to which invidious political considerations are introduced within faculty deliberations.
The report is insufficiently concerned with internal governance failures while at
the same time highly critical of external accountability and oversight. Politicization of
the hiring process is not relegated to the influence of external forces. Political considerations
within universities, in hiring committees and departments can be the dominant
factor undermining fair hiring practices. By focusing so heavily on external influence,
the draft report gives rise to a perception of unfairness, or more troublingly, active
efforts to safeguard internal politicization. Especially in light of the statement's directives
to marginalize external oversight, little remains in place to ensure internal stakeholders
do not impose their own political litmus tests. Due to this critical imbalance,
the report appears to be less concerned about protecting academic freedom than about
preserving professorial prerogatives. These perceptions can be addressed by expanding
substantially upon the draft report’s brief discussion of inappropriate political considerations
introduced by members of an institution’s own faculty. Failure to amend this
imbalance will undermine the professed goals of the statement, potentially exacerbating
the very problem is seeks to address.

IJCR is concerned that these three defects in the draft report, if not corrected, would
undermine precisely the academic freedom values that the report purports to advance.
Moreover, IJCR is concerned that these provisions undermine important related values
of public accountability and student rights. To the extent that this report could reduce
public confidence in the accountability and responsibility of faculty shared governance,
it would further frustrate the long-term values that the report and your association are
intended to serve.